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March 30, 2012 by David K. Sutton

Really? A Supreme Court Justice Compared Broccoli And Health Care?

When the Supreme Court strikes down the individual mandate and possibly the entire Affordable Care Act with a 5-4 decision, you can be sure Republicans will be mum on the topic of judicial activism. See, judicial activism only works in one direction.

The American people already believe congress is corrupt and if they didn’t believe the same is true of the Supreme Court that could change this June. That is the month the high court will make its final ruling on the constitutionality of the individual mandate and possibly the entire health care law.

I have no proof that the conservative justices will render their verdict on ideological lines, but it’s alarming to me that Justice Antonin Scalia compared purchasing health care insurance with purchasing broccoli. That seems to me a leap of logic based on a pre-existing narrative. I’m not sure such a comparison would be made if coming from a pure, non-biased perspective. And that of course is the problem. Supreme Court justices are human beings. They cannot completely remove their biases from the process.

If Scalia could remove his bias from the equation he would see that broccoli and health care are not comparable. First, one is insurance and the other is a consumable product. You don’t consume health care insurance. You don’t even consume health care services. Right there the comparison is invalid. Second, there is never a point in life when you need to buy broccoli but health care services will be required by everyone at some point. Stating it that way really makes it sound stupid to compare the two, doesn’t it? This was the comparison offered by one of the most powerful people in the country.

Heading into this week’s oral arguments over the Affordable Care Act, many pundits speculated the court would make it’s decision based on careful analysis of the arguments and legal precedent, but you can’t remove bias from the equation. It is ever-present. And since the high court has not avoided high-profile and derisive 5-4 decisions in recent history (Bush v Gore / Citizens United), I don’t expect it to turn over a new leaf with this decision.

No, I don’t know for sure how this will turn out, but I know where I would place my bet.